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DO I NEED A WILL?

You hear it all the time - I need a will. You need a will. Grandma really should get get a will. But there never seems to be time to have it done. Or it's too expensive.


There is in fact a reason why it takes a frustrating amount of time and money to obtain a will. It's really important. And while it will set you back some, it does not have to break your bank. Many good probate attorneys offer rates between $500 and $1,000 to obtain a small package of documents including a will, and power of attorney as well as an advanced medical directive.


If you want to know what is more important than the $750 or so bucks that you spend to get a will, it is making sure that you get a will that does what it is supposed to do. A will that sticks. That means a couple of things.


a. Your will needs to be signed, witnessed and self-proved properly; and,

b. You need to be able to find it when you need it.


BUT FIRST THINGS FIRST -


Before I talk about what the will should say and how to - not lose it - let's talk some about why it is, indeed, important.


ONE - we are living in an age of mixed and matched families. More and more frequently families consist of one or more biological and stepparents, maybe foster-kids, grand-kids or cousins raised as kids, half-siblings, step-siblings, surrogate parents, mix and match combinations of lesbian moms and gay-best-friend-dads and so on and so on . . . families of choice.


Unfortunately, the law has not caught up with the concept of families of choice. If you do not have a will, people you love like family and think of as family - people who ARE your family - may get frozen out when it's time to divide your property.


You may think that your kids get along great and would never argue over money, or turn on each other for a dollar, especially if they "know" your wishes. The reality is usually different.


Families fight about money. Especially siblings. If you don't make the decision now, the chances are they will indeed fight over your money and potentially destroy once close family relationships in the process.


Of perhaps equal concern, you may feel that one child or family member should not benefit from your estate. You can cut them out in a will, otherwise they will inherit.


Perhaps the best way to know if you need a will is to know what will happen to your property if you do not have one. Texas has very specific intestacy laws, based largely upon the British common law. The rudiments of the Common Law were written down in the 12th century but its roots go further back, so that says something about the mindset behind how property is distributed.


For example, if you die leaving a surviving spouse and children, your spouse gets 1/3 of your separate personal property and a "life estate" in 1/3 of your separate real property. This business of leaving 1/3 of your property to your surviving spouse harkens back to the days of "dower" rights when a widow had a right to 1/3 of her husband's land (and its income) to support her during old-age. Wealth, in the age of the budding common-law, was land and land was largely concentrated in the hands of a relatively small number of people.


So for a widow, 1/3 of your husband's land was probably adequate to support you. Today, it means little. And, 1/3 of her husband's personal property is probably not going to support a widow in old age. This rule is an anachronism that probably disserves modern families.


It's even worse with regard to community property. If you have kids who are not your spouse's children, under the intestacy laws the deceased's spouse half of the community property goes to his children. In this age of starter marriages with the resultant increase in step-families this rule not only deprives your spouse of half of what they likely view as "their" property but it puts the power of dispossession in the hands of your kids.


There may be wicked step-mothers whose unhappy step-children would gladly throw them in the gutter, but your spouse is probably not wicked, and it's probably not what you want. If it is you can put it in your will; but, as I say, it's probably not what you want. It's also probably not what you want to happen to you. Moreover, you may wish to leave what you have to all your kids - biological, adopted, fostered and step. If you die intestate the foster and step are cut-out.


I could provide further examples; but, instead I'll provide you with the text of the intestacy laws in Texas.


These laws are found at Texas Estates Code Chapter 201.


Sec. 201.001.  ESTATE OF AN INTESTATE NOT LEAVING SPOUSE.  (a)  If a person who dies intestate does not leave a spouse, the estate to which the person had title descends and passes in parcenary to the person's kindred in the order provided by this section.
(b)  The person's estate descends and passes to the person's children and the children's descendants.
(c)  If no child or child's descendant survives the person, the person's estate descends and passes in equal portions to the person's father and mother.
(d)  If only the person's father or mother survives the person, the person's estate shall:
(1)  be divided into two equal portions, with:
(A)  one portion passing to the surviving parent; and
(B)  one portion passing to the person's siblings and the siblings' descendants; or
(2)  be inherited entirely by the surviving parent if there is no sibling of the person or siblings' descendants.
(e)  If neither the person's father nor mother survives the person, the person's entire estate passes to the person's siblings and the siblings' descendants.
(f)  If none of the kindred described by Subsections (b)-(e) survive the person, the person's estate shall be divided into two moieties, with:
(1)  one moiety passing to the person's paternal kindred as provided by Subsection (g); and
(2)  one moiety passing to the person's maternal kindred as provided by Subsection (h).
(g)  The moiety passing to the person's paternal kindred passes in the following order:
(1)  if both paternal grandparents survive the person, equal portions pass to the person's paternal grandfather and grandmother;
(2)  if only the person's paternal grandfather or grandmother survives the person, the person's estate shall:
(A)  be divided into two equal portions, with:
(i)  one portion passing to the surviving grandparent; and
(ii)  one portion passing to the descendants of the deceased grandparent; or
(B)  pass entirely to the surviving grandparent if no descendant of the deceased grandparent survives the person; and
(3)  if neither the person's paternal grandfather nor grandmother survives the person, the moiety passing to the decedent's paternal kindred passes to the descendants of the person's paternal grandfather and grandmother, and so on without end, passing in like manner to the nearest lineal ancestors and their descendants.
(h)  The moiety passing to the person's maternal kindred passes in the same order and manner as the other moiety passes to the decedent's paternal kindred under Subsection (g).
Added by Acts 2009, 81st Leg., R.S., Ch. 680 (H.B. 2502), Sec. 1, eff. January 1, 2014.

Sec. 201.002.  SEPARATE ESTATE OF AN INTESTATE.  (a)  If a person who dies intestate leaves a surviving spouse, the estate, other than a community estate, to which the person had title descends and passes as provided by this section.
(b)  If the person has one or more children or a descendant of a child:
(1)  the surviving spouse takes one-third of the personal estate;
(2)  two-thirds of the personal estate descends to the person's child or children, and the descendants of a child or children; and
(3)  the surviving spouse is entitled to a life estate in one-third of the person's land, with the remainder descending to the person's child or children and the descendants of a child or children.
(c)  Except as provided by Subsection (d), if the person has no child and no descendant of a child:
(1)  the surviving spouse is entitled to all of the personal estate;
(2)  the surviving spouse is entitled to one-half of the person's land without a remainder to any person; and
(3)  one-half of the person's land passes and is inherited according to the rules of descent and distribution.
(d)  If the person described by Subsection (c) does not leave a surviving parent or one or more surviving siblings, or their descendants, the surviving spouse is entitled to the entire estate.
Added by Acts 2009, 81st Leg., R.S., Ch. 680 (H.B. 2502), Sec. 1, eff. January 1, 2014.

Sec. 201.003.  COMMUNITY ESTATE OF AN INTESTATE.  (a)  If a person who dies intestate leaves a surviving spouse, the community estate of the deceased spouse passes as provided by this section.
(b)  The community estate of the deceased spouse passes to the surviving spouse if:
(1)  no child or other descendant of the deceased spouse survives the deceased spouse; or
(2)  all of the surviving children and descendants of the deceased spouse are also children or descendants of the surviving spouse.
(c)  If the deceased spouse is survived by a child or other descendant who is not also a child or other descendant of the surviving spouse, the deceased spouse's undivided one-half interest in the community estate passes to the deceased spouse's children or other descendants.  The descendants inherit only the portion of that estate to which they would be entitled under Section 201.101.  In every case, the community estate passes charged with the debts against the community estate.
Added by Acts 2009, 81st Leg., R.S., Ch. 680 (H.B. 2502), Sec. 1, eff. January 1, 2014.
Amended by: 
Acts 2019, 86th Leg., R.S., Ch. 1141 (H.B. 2782), Sec. 5, eff. September 1, 2019.

You may not have read all of that but if you did, Congratulations. You now understand first-hand why you want a will. I am sure if you die without close relatives, most of you would rather leave your hard-earned money to a charity of your choice than to your "paternal kindred."


A Last Will & Testament allows you to divide your property as you see fit, to family or friends or charity based upon the unique circumstances of your life, as only you know and understand them to be. You can make special provision for children with special needs, cut out a child whom you do not consider deserving, and include your "family of choice" to the extent you wish. If you are alienated from your family or want to make provision for your stepchildren or cousins or even your pets a Will allows you to do that too.


If you'd like to know more about the advantages of having a will or find out how to get one that can be quickly probated without having to call witnesses who may or may not be available after your demise, call Hutson Law today to talk to an attorney.

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